Point of Law: Offence of Cruelty - Convicted - Trial Court rightly modified sentence - Benefit of under Act, 1958 - Court finds that courts below have rightly convicted petitioner under Section 498-A of Indian Penal Code. Petitioner has been rightly not entitled to benefit of Probation of Offenders Act, 1958.

JUDGMENT :

1. Heard Mr. Ranjan Kumar Singh, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Vishwanath Ray, learned counsel appearing on behalf of the opposite party- State.

3. The present revision petition is directed against the order dated 05.02.2011 passed by the learned Sessions Judge, Pakur in Criminal Appeal No.51 of 2008, whereby he has been pleased to partly allow the appeal by modifying the sentence passed by the learned trial court.

4. The petitioner was convicted vide order dated 17.06.2008 passed in PCR Case No.235 of 1998 (T.R. No.51 of 2008) by the learned Sub-Divisional Judicial Magistrate, Pakur for the offence under Section 498-A of the Indian Penal Code and the learned trial court sentenced him to undergo rigorous imprisonment for three years with fine of Rs.5,000/-. The learned Appellate Court modified the sentence of the petitioner by reducing it to two years instead of three years and the amount of fine was also reduced from Rs.5,000/- to Rs.2,000/-.

Arguments of the petitioner

5. Learned counsel for the petitioner has submitted that the petitioner is the husband of the complainant who was convicted under Section 498-A of the Indian Penal Code and the case of the defence was total denial of the occurrence and it was also argued that the complainant is not the wife of the petitioner. He submits that as the complainant was not the wife of the petitioner, therefore, conviction under Section 498-A of I.P.C. is not sustainable in the eyes of law. He has further submitted that otherwise also the basic ingredients of offence Section 498-A of I.P.C. has not been satisfied. The learned counsel has submitted that the learned courts below have failed to grant benefit of Section 360 of Code of Criminal Procedure.

6. While advancing his argument, the learned counsel has submitted that without prejudice to the aforesaid submission, the present case is of the year 1997-98 and the petitioner has remained in custody for a period from 10.08.2006 to 28.08.2007 and thereafter from 05.01.2012 to 24.07.2012 i.e. more than one year and seven months and the learned appellate court had reduced the sentence of the petitioner from three years to two years and the fine amount was also reduced from Rs. 5,000/- to Rs. 2,000/-. The learned counsel submits that considering the fact that about 22 years have elapsed from the date of incident, the sentence of the petitioner be modified and be limited to the period already undergone in custody.

Arguments of the opposite party- State

7. Learned counsel appearing on behalf of the opposite party-State, on the other hand, opposes the prayer and submits that initially the case was registered under Sections 493, 376, 323, 420 and 313/511 of the Indian Penal Code and the learned trial court found prima-facie case under Sections 493 and 323 of I.P.C., but subsequently the charge was framed under Section 498-A of the Indian Penal Code. The learned counsel has also submitted that there were not only materials on record showing admission of the petitioner that the complainant was his wife, but they also had a son born out of wedlock. It has been recorded in para-8 of the learned appellate court’s judgment that the prosecution also filed a copy of the order of Hon’ble Patna High Court in Criminal Miscellaneous Case No. 25303/1999 (Sushil Marandi vs. State of Bihar) dated 08.12.1999, which was the official copy, which showed that at the time of grant of bail, one supplementary-affidavit was filed by the petitioner that he has solemnized his marriage with the girl and therefore they are living as husband and wife and on this ground, the Hon’ble Patna High Court was pleased to grant bail to the petitioner on furnishing bail bond of Rs. 10,000/- (Rupees Ten Thousand) with two sureties. This bail order was passed in connection with the present case itself.

8. The learned counsel has also submitted that it has been recorded in the evidence of the complainant that a Panchayati was convened, in which